Mr D A Dotting v Secretary of State for Education: 6000653/2025
EMPLOYMENT TRIBUNALS
Case No 6000653/2025
Between
Mr D A DottingClaimantSecretary of State for EducationRespondent
Before
Employment Judge ClarkIn person for claimantMs I Stinga - Counsel for respondentDate 6 August 2025
JUDGMENT
The claimant’s claim is struck out under rule 38 of the Employment Tribunal Procedure Rules 2024 as an abuse of process.
REASONS
[1]This hearing was listed to determine the respondent’s application dated 20 March 2025 to strike out the claimant’s claim as an abuse of process or alternatively, as having no reasonable prospects of success (both as to its substance and the fact that it was presented out of time). There was a cross application by the claimant dated 23 March 2025 to strike out the response form. Whilst not expressly set out in the application, the claimant clarified orally that he relied on the respondent’s conduct of the proceedings, which he suggests was scandalous in its failure to refer the Tribunal to the statutory framework concerning qualified teacher status (the Education (Teachers) Regulations of 1993 and 2003).[2]For the purposes of this hearing the Tribunal has considered the contents of a joint bundle of documents running to 477 pages, an authorities bundle, written skeleton arguments from both parties together with their oral submissions. The parties’ oral submissions started at 10am and concluded at 15.45, so the Tribunal reserved its judgment.[3]At the start of the hearing, counsel asked whether the claimant was planning to give evidence as to the reasons he presented his claim out of time. Although the claimant expressed a willingness to give oral evidence, he had not been planning to do so, there had been no directions about evidence prior to the hearing and no written witness statement had been produced. The Tribunal indicated that, as it had not been asked to determine the time limit point as a preliminary issue, but simply to consider whether the claim should be struck out, the matter could be dealt with on the basis of submissions only. Conduct of the Hearing[4]There was only one connection problem in the course of the hearing, when Ms Stinga lost connection momentarily during the claimant’s oral submissions. The Tribunal summarised the submissions she had missed on her return to the CVP room. There was a short break at 10.37 when the claimant indicated that he had not received a copy of the combined bundle, which had been sent to him by the respondent on 24 July 2025. A copy was resent to him. The claimant confirmed that he had been able to follow counsel’s submissions, however, as the earlier version of the bundle had the same page numbering of the respondent’s documents. The amended bundle contained additional documents which the claimant had asked to be included and were available to him when he started his submissions after the lunch break. The Tribunal had a further break of 10 minutes at 11.52 and an hour for lunch from 13.10 to 14.10.[5]By emails dated 30 July 2025 the claimant seeks to supplement his written and oral submissions at the hearing by a clarification note with supporting documentation. Quite apart from the fact that the claimant had the opportunity to include documents in the joint bundle prior to the hearing and did so, as well as make written submissions prior to the hearing in response to the respondent’s skeleton argument and then to make oral submissions at the hearing, the additional documents and clarification note do not address the question of whether the claimant’s second claim should be struck out as an abuse of process. As such, the Tribunal has not taken account of the contents of the claimant’s clarification note or additional documentation in its reasons for this judgment.
Background
[6]This is the second set of proceedings commenced by the claimant in the Employment Tribunal related to the handling of a complaint he made to the Teaching Regulation Agency (TRA) in March 2022 against former teaching colleagues at a school he left in 2021. The TRA is an executive agency of the Department for Education, acting on behalf of the respondent to investigate allegations of teacher misconduct (amongst other things). The claimant has challenged the outcome of his complaint to the TRA via two Employment Tribunal claims and internally (as outlined in his claim form) with two complaints to the TRA, one complaint to the Department of Education and two complaints to the Secretary of State for Education.[7]The TRA reached a decision that the case should be close with no further action in relation to the claimant’s complaint. The reasons for the decision were communicated to the claimant in a letter from the TRA dated 15 November 2022. The claimant’s first claim to the Employment Tribunal alleging race discrimination and victimisation related to his complaint to the TRA was presented on 17 December 2023 under case number 2217651/2023. It was struck out following a public preliminary hearing on 3 October 2024 by Employment Judge Henderson in a reserved judgement dated 31 October 2024. The question for the Tribunal’s determination was, “whether the Tribunal had jurisdiction to hear the claimant’s claim for race discrimination and victimisation.” The claimant argued at that hearing that the respondent was a “qualifications body” for the purposes of section 53 of the Equality Act 2010 and had subjected him to a detriment and, therefore, the Tribunal had jurisdiction to hear his claim. The respondent’s position was that it was excluded from this definition by section 54(4)(d) of the Equality Act 2010, which sets out that a body is not a qualifications body in so far as it exercises functions under the Educations Acts. When the TRA is dealing with a complaint of teacher misconduct, it is exercising a statutory function under section 141B Education Act 2002. The claimant suggested that section 54 should be dis-applied as it is overly broad. In addition to his oral submissions, the Tribunal permitted the claimant to make supplementary written submissions following the hearing (on 7 October 2024) as he said that he had been unable to make the points he wished to make at the hearing[8]Employment Judge Henderson concluded in paragraphs 30 and 31 of her judgment as follows: 30 “The statutory exemption under section 54 (4) (d) is a clear one. TRA have demonstrated that when investigating referrals about teachers’ misconduct, they are acting under the Education Acts. This then excludes the application of section53. 31. The claimant’s claims to the Tribunal rely on the application of section 53. If the exemption applies then his claim cannot succeed as the Tribunal has no jurisdiction to hear it.” At paragraph 38, Judge Henderson concluded as follows: 38. “There is no ambiguity in the wording of sections 53 and54. That wording, based on these facts, yields a clear result – the Tribunal has no jurisdiction to hear the claimant’s claims.”[9]The claimant applied for a reconsideration of the judgment of Employment Judge Henderson on 1 November 2024 with supplementary documentation on 6, 10 and 11 November 2024. This application was refused on 25 November 2024. In the claimant’s correspondence of 10 November 2024 he first characterised the TRA investigation as an investigation against him as well as his colleagues. Employment Judge Henderson noted that this was not how the claimant had put his case in his 17 December 2023 claim form. On 9 December 2024 the claimant appealed against the Employment Tribunal’s judgment to the Employment Appeal Tribunal. The grounds of appeal include the contention that the TRA improperly investigated the claimant’s conduct as a teacher in the course of investigating his complaint against his colleagues. On 8th May 2025 the President of the EAT, The Honourable Lord Fairley, opined that the claimant’s notice of appeal disclosed no reasonable grounds. A date for an oral hearing is awaited.[10]The claimant’s second Employment Tribunal claim (6000653/2025) was presented on 7 January 2025. The claimant relies on the same misconduct complaint he made to the TRA in 2022 to support claims of race discrimination and victimisation and whistleblowing detriment. The discrimination claims rely on the respondent’s being a ”qualifications body” for the purposes of section 53 of the Equality Act 2010 (and not being excluded from that definition under section 54(4)(d)). The claimant alleges that his complaint in 2022 constituted an investigation of his own conduct as a teacher as well as an inquiry into his complaint against his colleague. One of the claimant’s allegations of race discrimination to the TRA concerned his own placement on a personal improvement plan (“PIP”) by the school’s Headteacher, so the TRA’s inquiry necessarily engaged with the reasons/motivations for this decision.[11]The reasons given by the claimant as to why he did not raise these issues in the previous proceedings (at least not until his application for reconsideration and appeal) are that, firstly, he was expecting that the preliminary hearing on 3 October 2024 to be focused on the issue of jurisdiction rather than to consider what detriment he might have experienced and secondly, he only became aware of the fact that he was “treated by the respondent as a member of the public” in making his complaint rather than a teacher in the course of the evidence given to the Tribunal in the earlier proceedings.
The Law
[12]As a general principle a litigant cannot keep bringing the same claim against the same respondent in the hope of achieving a different or better outcome. Doing so is regarded as an “abuse of process” and contrary to the public interest in the finality of litigation. An abuse of process is regarded as vexatious for the purposes of the Employment Tribunal Procedure Rules 2024 at rule 38(1)(a). This permits a claim to be struck out in circumstances where it is: “scandalous, vexatious or has no reasonable prospects of success”.[13]As Ms Stinga sets out in her skeleton argument, the two potentially relevant legal principles in this case are: issue estoppel and the “rule in Henderson v Henderson”. Issue estoppel prevents the parties re-litigating a legal issue between them which has been determined in earlier proceedings and which is a necessary part of both the earlier and later claims. An example of this would be a Tribunal’s determination of lack of employment status in the context of an unfair dismissal claim. If the same claimant were to make a subsequent claim against the same respondent for breach of contract (for which employee status is also necessary), there would be an issue estoppel in relation to the claimant’s status.[14]The rule in Henderson v Henderson was established in a 19th Century case of that name (1843 3 Hare 100, PC). It prevents parties from raising issues in subsequent proceedings which could and should have been put forward in earlier ones. The Tribunal was referred to Lord Sumption’s judgment in Virgin Atlantic Airways /Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 and the relevant extract in Harvey on Industrial Relations and Employment Law for an explanation of the legal rule. In the latter, Lord Bingham’s formulation from Johnson v Gore Wood & Co [2002] 2 AC 1 at paragraph 31 was set out. He explained that a “broad merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which it could have raised before.” It is not necessarily the case that just because something could have been raised in earlier proceedings it should have been. Whilst there is a public interest in the finality of litigation and it is important that court time is used efficiently, the Tribunal must be mindful of a party’s Article 6 ECHR right to access to justice.[15]The Tribunal was referred to the case of Divine-Bortey v London Borough of Brent [1998] IRLR 525 in which the Court of Appeal held that the wider form of issue estoppel established in Henderson v Henderson applies in Employment Tribunal proceedings. Accordingly, parties to litigation must bring forward their whole case and, except in special circumstances, will not be permitted to bring fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident. In that case, the claimant realised he might have a claim for race discrimination in light of comments made by a witness in the Employment Tribunal hearing of his unfair dismissal claim. The Court of Appeal held that the fact that the claimant was not legally represented and was unfamiliar with the law and procedure of the Employment Tribunal was not a special circumstance and neither was the respondent’s lawyers nor the Tribunal failure to advise him that a formal complaint of race discrimination was needed. The Court of Appeal held in Divine-Bortey that the claimant should have applied to amend his unfair dismissal claim to include a claim for race discrimination. This approach was re-iterated by Judge Eady KC in London Borough of Haringey v Mrs C A O’Brien UKEAT/0004/16/LA. Submissions[16]The respondent’s primary submission is that the claimant’s claims should be struck out as an abuse of process. The issue of jurisdiction was decided in the previous proceedings and binds this Tribunal. In so far as the claimant puts his claim differently in this claim (that his own abilities as a teacher were unlawfully investigated by the TRA in the course of his complaint) and as to his whistleblowing claim, these could and should have been brought in the previous proceedings. Failing to do so is an abuse of process. It is suggested that the claimant’s repeated challenges to the respondent’s conduct of his complaint through correspondence, complaints and FOI requests in addition to the Tribunal proceedings are evidence of the claimant’s being a serial litigant, who is unable to accept the outcome of his original complaint.[17]The claimant’s written skeleton argument primarily addressed whether the respondent was a qualifications body for the purposes of section 53 of the Equality Act 2010 rather than the question of abuse of process. It is the claimant’s case that the respondent is not protected by the section 54(4)(d) exemption under the Equality Act 2010 because the respondent was acting outside of its powers in 2022 by conducting what amounted to an investigation of his own conduct alongside his complaint against his colleague, but without a formal referral (or the other procedural protections which should follow to someone accused for misconduct). He stated that, as an unrepresented party, he had not been prepared to answer all the questions asked of him in the course of the 3 October 2024 hearing, which he considers strayed into matters of substance rather than simply jurisdiction. He also suggests that he only became aware of the fact that the respondent treated him as a “member of the public” rather than a teacher when he made his complaint to the TRA in the course of the evidence at the 3 October 2024 hearing. If the Tribunal has understood this point correctly, this created an extra layer of inconsistency in the TRA’s outcome, given that it nonetheless assessed his ability as a teacher (on the claimant’s case).
Conclusions
[18]The claimant, rightly, points out that the substantive merits of the claimant’s first claim were not determined by Employment Judge Henderson it was only the jurisdictional issue which was decided. The Tribunal acknowledges the claimant’s frustration that the substantive issues between the parties have not been determined by the Employment Tribunal. That is the outcome the claimant seeks through these proceedings, having failed to persuade the Tribunal that it had jurisdiction to do so in 2024.[19]Before a Tribunal can determine the substance of a claim for unlawful discrimination (or whistleblowing detriment), it has to satisfy itself that it has jurisdiction to do so. It does not have a general power to determine grievances which arise in the context of someone’s working life. In the ordinary course of events, a claimant would bring a claim for unlawful discrimination or whistleblowing detriment against his or her employer. In the case of this claimant, that would have been the governing body of the school which employed him in 2021. He did not do so, but brought a challenge against the TRA which failed to uphold his regulatory complaint against his former colleagues. The jurisdictional issue which faces this Tribunal in determining the discrimination/victimisation claims in the claimant’s second claim is, therefore, identical to the issue which was before Employment Judge Henderson in 2024. That is whether, when determining the claimant’s complaints against his colleagues in 2022, the respondent was acting as a “qualifications body” for the purposes of section 53 of the Equality Act 2010, having regard to the provisions in section 54(4)(d) of the 2010 Act.[20]It is notable that in the claimant’s skeleton argument at paragraph 1.1 he states, “this skeleton argument is submitted in advance of the preliminary hearing ordered to determine whether the respondent acts as a “qualifications body” within the meaning of sections 53 and 54 of the Equality Act 2010.” In paragraph 8.1 of his skeleton, he invites the Tribunal to determine that, the respondent “is a qualifications body under section 53 of the Equality Act 2010 in relation to the claimant.” Whilst this is a mischaracterisation of the purpose of this preliminary hearing, it would certainly be the issue for the next preliminary hearing in this litigation (if the case were to proceed further). It was also squarely the issue before Employment Judge Henderson, which the claimant is in the process of appealing to the EAT.[21]The legal issue is common to both sets of proceedings and the parties are identical. The factual background is also the same, namely the claimant’s 2022 complaint against his colleagues, which provoked a “no further action” decision by the respondent. The Tribunal on 3 October 2024 heard evidence and considered submissions from both parties on this question and Employment Judge Henderson permitted the claimant to supplement his oral submissions with later written submissions.[22]The claimant’s approach to this question within these proceedings has been slightly different to that in his first claim, because the claimant has re-framed the outcome of his complaint about the conduct of other teachers in March 2022 as an investigation/evaluation of his own professional conduct as a teacher by the TRA.[23]The question of how the claimant’s professional qualification or status was affected by the outcome of his complaint in 2022 was clearly canvassed in the first proceedings. This can be seen from paragraphs 22 – 25 of the judgment of EJ Henderson. The respondent’s primary case in 2024 was that the TRA was not a qualifications body, but “even if this is incorrect, the substance of the claimant’s claim had nothing to do with the claimant’s own qualification or his status as a teacher, which is the essential nature of section 53” Employment Judge Henderson went on to explain in paragraph 24 of her judgment that “the claimant was unable to identify in his oral submissions, the detriment he had suffered with regard to his own qualification…in this regard he said the words should be read literally as the subsections referred simply to “any other detriment.”[24]The hearing on the 3 October 2024 was the time for the claimant to put forward an argument that the respondent had unlawfully investigated his conduct in 2022 and, therefore, could not rely on section 54(4)(d). It was unsurprising that Employment Judge Henderson concluded at paragraph 39 of her judgment that; “the detriment the claimant alleges he has suffered is not related to and does not affect his own qualification or status as a teacher”, since the claimant was not able to identify such a detriment within those proceedings.[25]This second claim constitutes the claimant’s attempt to define the detriment he had suffered with regard to his own professional qualification as a teacher. The same can be said for his notice of appeal in which the claimant complains that the Henderson Tribunal had misinterpreted a statutory exemption and that the TRA had investigated the claimant’s conduct in spite of the lack of referral of him for misconduct. The claimant stated in terms in his notice of appeal against the 31 October 2024 judgment that by investigating and making findings against the claimant without a formal referral of the claimant, the TRA exceeded its statutory powers under section 141B of the Education Act 2002 (page 4 of the appeal). These are precisely the arguments he makes in his second claim.[26]The claimant has taken the correct procedural approach in challenging the 31 October 2024 judgment by way of appeal to the EAT. That is the route which Parliament has set out for a party to challenge a decision where they contend an error of law has been made. Presenting a second claim to the same Tribunal in the hope that a different outcome might be achieved in relation to the jurisdiction question either by using the same or different arguments is not consistent with the public interest in the finality of litigation. It requires the respondent to defend two sets of proceedings in relation to precisely the same factual circumstances and legal issue rather than one. In relation to the construction of sections 53 and 54 of the Equality Act 2010, the Tribunal considers this to be an issue estoppel pure and simple rather than offending against the rule in Henderson v Henderson. The Tribunal found that the respondent was acting under powers conferred by the Education Acts in determining the claimant’s complaint of March 2022 (contrary to what he now invites the Tribunal to find). The jurisdictional issue is a “necessary ingredient” for both the claimant’s 2024 and 2025 discrimination and victimisation claims and it has already been determined by the Tribunal (subject to appeal).[27]If the Tribunal is wrong in that conclusion and the claimant’s reframing of the respondent’s investigation as an evaluation of his own professional conduct or capabilities gives rise to a distinct jurisdictional issue (which was not considered at the 3 October 2024 hearing) this could and should have been raised in the earlier proceedings. It is not enough that the claimant could and should have put forward these arguments earlier – the Tribunal must be satisfied that it would be an abuse of process to permit them to be aired in a second set of proceedings. For the reasons set out below, it is so satisfied.[28]The two reasons put forward for the claimant’s earlier failure to characterise the outcome of his complaint as an investigation of his own conduct are not cogent ones. The claimant suggests that he realised for the first time in the course of the 3 October 2024 hearing that he had been treated as a member of the public rather than a teacher in making his complaint. This factual issue is recorded in paragraph 17 of the judgment and reasons of Employment Judge Henderson, as follows: “Mr Cavey confirmed that the TRA (when conducting its investigations into teachers’ conduct) made no distinction between complaints referred to them by individuals who were teachers and those who were members of the public generally. The claimant acknowledged this and confirmed that he had submitted his complaint on the referral form for use by members of the public (pages 8 – 95 of the Bundle). The claimant also acknowledged that he had left the section on that form for “job title” blank and so had not appeared to rely on his status as a teacher when making the referral.”[29]Apart from the fact that the above finding undermines the claimant’s suggestion that this information was revelatory to him, there does not appear to be a logical link between this realisation and the re-interpretation of the outcome letter as containing findings of misconduct against the claimant in his professional capacity as a teacher.[30]The second reason put forward is that the claimant was “not able to put his thoughts together” at the hearing on the 3 October 2024 when asked a question about the nature of the detriment he had suffered in relation to his own qualification or status as a teacher for the purposes of section 53(2)(c) of the Equality Act 2010. Exactly the same factual information pleaded in the second claim was available to the claimant when his first claim was presented and heard. The claimant was not prompted to raise this argument in direct response to the respondent’s submission to the contrary on 3 October 2024 or in response to the Judge’s question which might reasonably have been expected to illicit the argument the claimant now makes, or in his follow up written submissions on 7 October 2024. This undermines the strength of the claimant’s argument. Were it really the case that the claimant considered his own qualification status or professional reputation had been damaged as a result of the (unpublished) outcome of his complaint against his colleagues in November 2022, he would have articulated this well before 3 October 2024 and certainly when specifically questioned about what detriment he had suffered to his own status in the course of the hearing on 3 October 2024.[31]It is clear from Divine-Bortey v London Borough of Brent that the claimant’s lack of legal representation or unfamiliarity with Tribunal proceedings in itself is not a compelling reason to excuse the fact that he did not put forward his “whole claim” to the Tribunal in 2024. In any event, compared to many litigants in person, the claimant, is a relatively sophisticated litigant, who has experience of Tribunal proceedings, having represented a former colleague at an Employment Tribunal hearing in July 2024.[32]Further, the claimant’s second claim has been presented significantly out of time. The claimant’s complaint concerns observations made in the TRA’s outcome letter dated 15 November 2022. The time limit issue was not addressed in the claimant’s written skeleton argument for this hearing, but when asked about it he suggested that the claim was not out of time because the 15 November 2022 letter has had continuing consequences for him. In stating this, the claimant appears to have misunderstood the nature of the legal test. The relevant statutory provision is section 123(3(a) of the Equality Act 2010 and refers to “conduct extending over a period is to be treated as done at the end of that period”. It is the conduct rather than the consequences of the conduct which needs to be assessed in determining the time limit. As such, the claimant’s claim appears to have been brought nearly two years out of time and he has not put forward any compelling argument as to why it would be just and equitable to extend time for such a substantial period.[33]Whilst not put forward as an argument by the claimant in this hearing, he has previously suggested that the respondent’s repeated refusal to amend its outcome letter amount to a series of acts of discrimination. The respondent’s most recent refusal to amend its outcome letter occurred on 12 June 2024, which still remains outside the primary limitation period. Whilst the Tribunal has not determined the time limit issue, the claimant’s delay in bringing this claim is a proper matter to consider in the Tribunal’s merits based assessment in Henderson v Henderson terms.[34]For reasons best known to the claimant, he did not bring a claim of race discrimination/protected disclosure detriment in the Employment Tribunal against his former employer. It is the claimant’s treatment at work in 2021 which underlies his sense of grievance. The focus of this litigation is the fact that the TRA did not share the claimant’s interpretation of his former employer’s conduct. In making this second claim, the claimant appears to have overlooked the observations of Employment Judge Henderson in paragraphs 34, 35 and 39 of her judgment as to his possible misunderstanding of the role of the Employment Tribunals and the means of redress open to those who claim to have experienced unlawful discrimination by a public body for which they did not work. To make a second claim in the same forum in the face of such observations underlines the fact that the claimant is misusing the Employment Tribunal.[35]The Tribunal does not consider that the claimant’s Article 6 ECHR right to a fair trial is compromised by striking out his second claim. Article 6 does not go so far as to provide a right to the determination of civil rights in a forum of a litigant’s choosing. The Tribunal has no hesitation in concluding that the respondent should not have to defend a second set of proceedings from the claimant in the Employment Tribunal in relation to his 2022 complaint. To expect the respondent to spend public funds on another preliminary hearing to determine whether the Employment Tribunal has jurisdiction to hear the claimant’s repackaged claim would be oppressive.[36]The claimant’s claim for whistleblowing detriment is dealt with separately from his claims for race discrimination and victimisation, since whistleblowing detriment was not included in his first claim. The claimant mentioned in his first claim form that he had sent “whistleblowing and misconduct” concerns to the TRA in March 2022, but he did not articulate a whistleblowing detriment claim in relation to them. The Tribunal’s jurisdiction under the Employment Rights Act 1996 to hear such a claim was not, therefore, considered in the 3 October 2024 hearing, so no question of issue estoppel arises. It is clear from the repeated references to “whistleblowing” in the first claim form, that the claimant was aware of the potential for such a claim. The claimant did not address his whistleblowing claim in his written skeleton argument or his oral submissions for this hearing, so the Tribunal asked him about the basis on which his claim is now brought, bearing in mind jurisdiction relies on the claimant’s having employee or worker status (or applying for it) in relation to the respondent for the purposes of section 230 of the Employment Rights Act 1996. The claimant confirmed that he was not saying he was employed by the respondent or a worker in relation to it, merely that the respondent was the regulatory body for his profession.[37]Given the claimant is not asserting that he was an employee or worker of the respondent, his claim for whistleblowing detriment is hopeless. That might be why he did not make such a claim on his first claim form. The claimant did not put forward a specific reason for failing to do so. Be that as it may, in addition to the reasons outlined above in relation to the discrimination claims, the Tribunal has no hesitation in concluding that it is an abuse of process to expect the respondent to defend and the Tribunal to decide a hopeless claim, which could and should have been brought on the claimant’s first claim form (if at all).[38]The respondent has suggested in the alternative that the claimant’s second claim should be struck out as having no reasonable prospects of success on its merits or on the basis that it was brought out of time. The Tribunal has not determined these applications. To do so would be inconsistent with its primary conclusion that the presentation of the second claim was an abuse of process. The Tribunal’s time and resources should not be taken up with determining a duplicative claim.[39]As the claimant’s claim has been struck out pursuant to the respondent’s application of 20 March 2025, it is not necessary to determine the claimant’s 23 March 2025 application to strike out the response form.